Clarence Page A conservative defends gay marriage

Thursday

Jun 18, 2009 at 5:01 AM

Politics doesn't make strange bedfellows, Groucho Marx once said, "marriage does." If so, it's not so surprising that the opposing attorneys in the 2000 Bush v. Gore case are now teamed up by marriage politics.

Think Alien and Predator partnering up to fight a tag team match against King Kong and Godzilla.

That's barely less likely, many would have thought, than Theodore Olson, the former solicitor general who represented George Bush in the case that settled that year's presidential election, joining forces with David Boies, who argued for Al Gore.

And, of all the unlikely causes for the famously conservative Olson, the two have filed a federal lawsuit to overturn California's Proposition 8 referendum to ban same-sex marriage.

A prominent conservative critic of Bill Clinton's presidency, Olson is known for such controversial deeds as helping to prepare Paula Jones' attorneys for their Supreme Court appearance. But outside of court, Boies and Olson are not sworn enemies. They're friends and professionals. They don't take their courtroom jousts personally.

Yet these two legal eagles have been brought together by something we don't see often enough in Washington: principles. Among them is the principle that the Constitution balances majority rule with protections of minority rights.

Whether one likes the same-sex marriage right or not, the argument goes, it was found in the California courts to be a fundamental right before the November vote. Although California's Supreme Court has upheld Prop 8 since November, Olson and Boies argue the 14th Amendment of the U. S. Constitution protects a minority from having a fundamental right taken away by a vote of the majority.

That's a pretty persuasive argument, even for the strict constructionists like Olson who have high respect for the original intent of the Framers of the Constitution. The nation's founders cared a lot about minority rights, partly because as white, male landowners they were a minority that needed protecting.

Even so, some gay-rights advocates fear the Olson-Boies lawsuit comes too soon. They fear the case could be fought all the way up to a conservative U.S. Supreme Court and lose. Backers of Olson and Boies don't want to wait for public opinion to change, even though polls show it changing nationwide in their favor.

Among those who were surprised to find themselves enlisting Olson was Chad Griffin, founder of the American Foundation for Equal Rights, which is spearheading the legal effort. After all, Griffin, 35, a political consultant, was a young staffer in the Clinton White House when Olson's conservative colleagues "made my life hell," he said in a telephone interview.

But Griffin was impressed by Olson's sincerity and his legal strategy, he says. Teaming up the two famous adversaries also underscores the argument that equal rights for same-sex couples need not be a partisan issue. "Civil rights," Griffin said, "should never be decided by a popularity contest."

Indeed, one can easily imagine how quickly the right of blacks and whites to marry one another would have been voted down back in 1967. That's when the Supreme Court's Loving v. Virginia case struck down state anti-miscegenation laws. Opinion polls at the time showed interracial marriage was supported by a pitifully small percentage of voters. But the Supreme Court's action helped pave the way for attitudes to change.

By comparison, same-sex marriage has been gaining strength so rapidly in recent years one begins to wonder what's taking Washington so long to catch up. Polls are showing support for gay marriage has become less a matter of politics or religion than age. Old folks don't want to hear about it. Youngsters wonder, what's the big deal?

In that sense, the kids echo the libertarian principles that conservatives like Olson can appreciate. It's the belief that what you do in your own home is nobody else's business, as long as you're not hurting anybody.

That's why the argument that same-sex couples pose a threat to traditional marriage is looking increasingly lame, particularly among the young. After decades of rising cohabitation, divorce and out-of-wedlock births devaluing marriage, we should be delighted gays and lesbians are trying so hard to prop it up.